McCabe and Papadopoulos: Two-Tiered Justice

Former acting FBI Director Andrew McCabe testifies before a Senate Intelligence Committee hearing, June 7, 2017. (Aaron P. Bernstein/Reuters)“Equal justice under the law” is not supposed to be an aspiration or a quaint slogan. It is supposed to be a guarantee.

The date of a meeting, that’s all the lie was about.

George Papadopoulos claimed that a meeting he’d had with the mysterious Maltese professor, Josef Mifsud, happened slightly before the green-as-grass 28-year-old was recruited into the Trump campaign. In reality, it was slightly after.

It wasn’t a very important lie. It was of no consequence to the FBI or the special counsel’s investigation. Papadopoulos was such an afterthought that the Bureau did not bother to interview him until late January 2017 — about 10 months after he met Mifsud. By the time Papadopoulos was charged, the Trump–Russia investigation had been ongoing for well over a year — it was already clear that there was no conspiracy.

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Yet that didn’t stop Mueller’s staff and Rod Rosenstein, their Justice Department superior, from indicting Papadopoulos on a felony charge. Nor did it stop them from exhorting a federal court to impose a sentence of incarceration. (The judge thought so little of the case, a prison term of 14 days was imposed.)

It wasn’t enough that prosecutors and agents had scared the bejesus out Papadopoulos by scheming to arrest him as he disembarked from a flight in the early evening – after the court was closed, ensuring that young George would spend the night in jail. The fact that he had voluntarily spoken to the feds, that he had counsel who’d made themselves and him available to Mueller’s prosecutors, that he was no flight risk – none of that counted for anything. After all, what fun would it be to call his lawyers and arrange his surrender for processing and quick release on bail? Not when government officials could flex their muscles and show him who’s boss, right?

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I couldn’t help thinking about the hardball treatment of Papadopoulos when, yesterday, CNN announced the hiring of Andrew McCabe as a commentator. McCabe, of course, was the FBI’s deputy director before being fired after the Justice Department’s inspector general, Michael Horowitz, concluded that he made multiple false statements to the FBI — including under oath. McCabe was questioned in connection with his leak of investigative information to the media. The leak may have damaged the FBI’s investigation of the Clinton Foundation (it certainly exposed information the Bureau was trying to keep under wraps).

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As I’ve previously recounted, McCabe is quite the operator: According to the IG report, to try to throw snoops off the scent, the then–deputy director indignantly reamed out subordinates in New York and Washington — as if these FBI field offices were guilty of the leak McCabe himself had orchestrated. His mendacity obviously obstructed the leak investigation, requiring additional interviews as agents ran down the misleading information.

McCabe has never been charged.

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Government officials who leak while demonstrating their contempt for Donald Trump manage to land on their feet. McCabe joins a CNN stable that includes former Obama national intelligence director James Clapper, who is best known for lying to Congress about the government’s bulk collection of telephone metadata . . . and for discussing Steele dossier information with CNN shortly before the network published a report about it . . . and not long before it hired Clapper as a commentator. CNN missed out on former Obama CIA director John Brennan, who falsely denied to the Senate that his agency spied on the chamber’s intelligence committee. Brennan, who said he was really sorry, was inked by MSNBC.

As Papadopoulos can tell you, non-government types who mislead government investigations don’t do so well.

Viewed in isolation, the Papadopoulos prosecution is not the sort of thing that tugs at my heartstrings. One of the many reasons Americans are winners of life’s lottery is that we live in a country in which no one may be forced to be a witness against himself. Refusing to speak to police is always an option, so lying should not be. If people came to think they could lie with impunity, the justice system would break down.

But it is supposed to be a justice system. One tier, not two. Everyone systematically given equal justice, which is the only justice worthy of the name.

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For about ten days, I’ve had a new book out on Russiagate, called Ball of Collusion. I’ve gotten to do lots of speeches and interviews. Most interesting are the ones when members of the audience ask questions. Without fail, they home in on the thing I least like to talk about: What is going to happen to government officials who are suspected of abusing their powers and misleading such bodies as the Foreign Intelligence Surveillance Court? A name that reliably comes up is Andy McCabe. People who have followed the story know the IG referred him to the Justice Department for a possible false-statements prosecution. They know other aspects of McCabe’s conduct are still under investigation.

I hate this topic because I am not one to cheerlead for comeuppance against law-enforcement people. I know how hard their jobs are, how readily errors can be made because one often has to act on imperfect information; because there is a natural zeal to catch bad guys that can easily become overzealousness. I have no problem analyzing their judgment calls — mine got analyzed plenty, and we all make our share of mistakes. But I am hard-wired not to presume bad motive.

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So I tell people what they don’t want to hear: We don’t know all the salient facts; we should wait for the imminent reports of investigations being conducted by Horowitz and John Durham (the Connecticut U.S. attorney tasked by AG Bill Barr to probe Russiagate); and we should disabuse ourselves of the notion that errors in judgment and abuses of discretion, even egregious ones, necessarily entail criminal-law violations. It is much more important to have a factual accounting of what happened, and to take whatever curative measures are apt to prevent bad things from happening again.

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Suffice it to say, this does not get a warm reception.

There is a great deal of anger out there. People see the kid-gloves approach to the Clinton-emails investigation, and they can’t square it with the aggression of the Trump–Russia probe. They see the laws contorted to let Mrs. Clinton slide, while the screws get put to Michael Flynn and Paul Manafort over the Logan Act and the Foreign Agent Registration Act – statutes the Justice Department almost never invokes.

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